Tim Tebow Trademarking 'Tebowing' Tarnishes Trademark

from the tithes-for-praying dept

For a long time, trademark law was one of the few aspects of intellectual property that I thought I understood. The government allows some limited exclusivity over a brand so that, as commerce occurs, customers wouldn't be duped into buying one thing when they intended to buy another (or some variation of this equation). Except that relatively recently there has been a push to expand both the rights and reasons for trademarks further, introducing things like the concepts of "tarnishment" and "dilution" to the discussion. As Mike wrote in that piece:

The theories behind such efforts have always seemed quite questionable and, as with these kinds of laws, the effort to put them into the law (and to expand them) are almost always anecdotal, rather than empirical. So you hear plenty of talk about how even if there isn't any consumer confusion, a brand could be "harmed" by dilution or tarnishment. For example, just recently, we had a discussion about Ben & Jerry's ice cream suing a porn company, for creating porn movies that used covers that looked similar to Ben & Jerry's packaging. We noted a complete lack of likelihood of customer confusion, but, as many of our commenters pointed out, the theory in the lawsuit was more focused on tarnishment.

I happen to agree that without customer confusion, trademark shouldn't apply. Even if one is worried about tarnishment, without the confusion or conflation, tarnishment doesn't happen to the original brand. But what if we make this all just a tad more murky? What if the "brand" in question has no commerce to speak of and in fact boasts that the application of the trademark was not for commercial benefit at all? And what if the trademark is granted for something that is both widely done on a national scale and is so done as a routine part of religious expression? According to the law, trademarks are only supposed to apply to the mark when it's "used in commerce." But, due to people confusingly linking it in to "intellectual" property, many incorrectly believe that it applies to anything they want.

Take the case of Tim Tebow, known best for being the awful backup quarterback to another awful quarterback, who has now been granted filed for a bunch of trademarks on 'Tebowing'. In case you missed the last two years on the internet and don't know what 'Tebowing' is, it's essentially genuflecting in prayer on one knee and bowing your head onto your clenched fist.

Also known as "the-manual-labor-I-had-to-do-every-Sunday-growing-up-ing"

This is leading some, like Washinton Times Julia Goralka, to question exactly how much Tim Tebow can now influence how the public prays, all thanks to a government brand monopoly via trademark.

As of October 9, 2012, Tim Tebow now owns the trademark for “Tebowing.” Tebow has stated that he did not acquire the trademark for financial gain, and being the good Christian that he is, that is probably true. Tebow’s goal is “to just control how it’s used, make sure it’s used in the right way.”

Actually, he can't control how the public prays at all -- unless they're doing it in a Doritos commercial in a limited way in which the pose looks like Tebow's trademarked pose, and that is likely to confuse people into thinking he had a part in it. Though, if he's admitting that he didn't get the trademark for financial reasons, it raises the question of whether the trademark is valid at all. Remember, trademarks can only be issued for use in commerce. His admission here certainly suggests the trademark is completely bogus. Update: And, as the details show, he only applied for a trademark on the word... not on the actual pose. So this is even less of a big deal.

More troubling, perhaps, is that in this age of "intellectual property expansion" (and the regular conflation of trademark with things like copyright and patents), many people don't understand that trademarks only apply to use in commerce -- and may actually believe that praying like Tebow is no longer allowed without a license. The end result is that this trademarking of Tebowing, rather than making sure that the pose is "used in the right way," just leads to less and less respect for trademark law, as people assume that if you can trademark Tebowing, trademark law is silly.

Of course, no matter how much we'd like to, we can't just blame Tebow for the overreach here. As Techdirt has been noting over the last year or so, there's been a massive increase in sports stars trying to trademark their own (not always) distinct features, catchphrases or nicknames. Sometimes, it seems like they make stuff up just to trademark it.

So the next time you're bent over in prayer (for purely non-commercial reasons, hopefully), fear not: you're not violating Tebow's trademark. But you might want to pray about the situation we're in, in which sports stars think that getting such trademarks is a reasonable use of the law.

Uh Oh

Being able to apply for a Tebowing trademark isn't a problem; IP law is clearly beyond the average person (or sports star).
However, being granted said trademark is a problem, since IP law is apparently also beyond the average USPTO attorney. I can't imagine why people unfamiliar with trademarks would be put in charge of the entire country's trademark system, but I strongly suggest that they be fired immediately and replaced with competent attorneys.

If Tim Tebow breaks off a long scramble for a touchdown, and he says a little prayer of thanks to God, but there was holding and they call back the play, does that call back the prayer too? I can't find that anywhere in the rule book.

Re: Re: he certainly..

John,
The name of the religion does not matter. As long as you live your life righteous, and be a good human being, there is no need to follow a suggested path of good living from an organization, or corporation, which IMHO is what organized religion is.

Everyone, just stop the generalizations by race, religion, or creed, and just treat everyone with the respect they deserve.

Re:

Re: he certainly..

One time I turned down a job doing the same thing paying double because I felt that God didn't want me to take it.

After that (and completely unknown to me at the time), I got in a partnership with a vendor to write some software and made pretty good money doing it. Still not as much as the other position, but I was able to help his wife and daughter out with selling his company when he died unexpectedly.

I am very happy with the way everything turned out, even though it wasn't for maximum financial gain.

Re: Re: Article Correction

Tebow trademarks "The Thinker", created by famous French Sculptor

So, Tim Tebow has been granted a trademark over something that he has no right to trademark in the first place. Pardon me for saying but that this trademark should never have been granted considering that this is a cheap ripoff of Auguste Rodin's famous sculture, "The Thinker":

Well, not really . . .

I did a quick check at uspto.gov, and it seems there are ten listings for registrations of "TEBOWING". Three dead and three live. The three live ones all seem to be for the word mark, as used on various products and services. I don't see one for the act of tebowing itself.

And, just because you are not looking to make money doesn't mean you're not using the mark in commerce. Maybe he wants to give away T-shirts or something. Or sell them for good causes, or maybe donating the proceeds to his church.

Further, I think the argument that some people might be so confused as to think that making a big showy deal of dropping to one knee to modestly pray in front of millions of viewers is prohibited, I think we could look to the test that has been used before on TechDirt. Would a moron in a hurry make that mistake?

In any case, in my admittedly very quick, cursory search, I didn't see a registration that could even loosely be interpreted as impacting the act of praying in the Tim Tebow style. It could impact the act of selling a T-shirt that has a message about tebowing, but not the act of striking the melodramatically casual pose itself.

Re: Well, not really . . .

Re: Re: Re: he certainly..

Oh, I agree. I'm not personally Christian at all, I'm just pointing out that Christian dogma is at odds with the accumulation of wealth and therefore to accuse all Christians of being greedy is simply misidentifying who the Christians are.

Re: Re:

Do you people ever get tired of retreading the friggin' Crusades?

Back on subject, I don't believe that a person should be allowed to trademark a human pose, motion, or whatever. This is just playing into the corporate mindset of trying to own everything under the sun. If you replicate certain dance moves from a music video and then post on YouTube, for example, they'll take your video down for copyright infringement.

Re: Re: Author has no credibility

Re: Well, not really . . .

Further, I think the argument that some people might be so confused as to think that making a big showy deal of dropping to one knee to modestly pray in front of millions of viewers is prohibited, I think we could look to the test that has been used before on TechDirt. Would a moron in a hurry make that mistake?

No, no one on TechDirt would make that mistake (with the exception of a few "loose cannons"), but I bet some Trademark troll lawyers and a few moron juries and judges in East Texas will easily make that mistake.

It will pan out to the same tired old song as copyright and patent trolling, "You can pay us upfront, or we'll take you to court. Even if we lose, you'll still be out a larger amount of money than you would have been if you hadn't decided to defend yourself. So do yourself a favor and pay up to make us "go away"... til the next time we come after you with something even more frivolous."

So where's the registration? It's a public database, surely you could cough up the link to the supposed record, if there was such a thing. Instead, you rely on a "reporter" who admits to not knowing the difference between a trademark and a copyright and breathlessly reports that it's possible to claim exclusive rights over genuflecting at church. You were smart enough to point out THAT isn't true, but what about confirming whether such a registration even exists? Sloppy.

It looks like there is one application for TEBOWING that was published on October 9, 2012, the date given by Newsday for the application's "approval." It is an application for the WORD TEBOWING for use on hat and T-shirts, not for any kind of physical motion or even an image depicting a physical motion. http://tsdr.uspto.gov/#caseNumber=85458244&caseType=SERIAL_NO&searchType=statusSearch The premise of you article is entirely false.

It's also false that this application was filed by Tim Tebow. Instead it was filed (along with others) by an individual d/b/a "Tebowing." The application was refused for its false suggestion of a connection with Tim Tebow and ultimately was assigned to Tim Tebow. Perhaps you could use this information to demonstrate how the Trademark Office functions quite well to prevent opportunists trying to register trademarks associated with famous individuals.

Re: Re: Re:

"Do you people ever get tired of retreading the friggin' Crusades?"

No! I like to throw in the Inquisition, the repeated mistake of the Crusades, the treatment of Galileo, celibacy and the reasons for it, and a few others. Just as the Church teaches Original Sin, yet produces a highly edited bible created 100 years after they tossed out major players' contributions. They offer an awful lot of opportunity for comment on hypocrisy. I am not looking for an argument here. I respect your right to believe whatever you want. I reserve my right not to 1)be persuaded 2)even listen at times.

Most folks talk out of both sides of their mouths at the same time, and Christians are no different. The problem is for the rest of us to know when they are talking out of their 'A' and when their talking out of their 'CS' side. CS=Common Sense, figure 'A' out for yourself.

Oh, and I agree, dump any trademark claim that is not referring to a product or service, and the reference is such that it might cause the public confusion, and nothing else, repeatedly, in such a way that all the Olympic Pizza's et al may have their names back.

I can see why they allowed Tebow to trademark his "Tebowing", to prevent others from profiting off of his fame (that will be left to his marketing agency). I just hope he doesn't try any "Monster" Tebowing, or Monster Cable will have his ass in court.

If only this had happened sooner, we could have prevented "Tebowing" crimes such as this one:

Re:

"Tebowing"

Yes, both he and his lawyer are an embarrassment to themselves and religious people everywhere. You can't trademark prior art. It's been called genuflecting for centuries before his attention-starved, arrogant bottom was ever born. He needs to get over himself.

Re: Re: Re: Re:

"No! I like to throw in the Inquisition, the repeated mistake of the Crusades, the treatment of Galileo, celibacy and the reasons for it, and a few others. Just as the Church teaches Original Sin, yet produces a highly edited bible created 100 years after they tossed out major players' contributions. They offer an awful lot of opportunity for comment on hypocrisy. I am not looking for an argument here. I respect your right to believe whatever you want. I reserve my right not to 1)be persuaded 2)even listen at times."

So he is protecting his name/take on his name. "Tebowing", the word, is trademarked not the action. This will help prevent his name being used to endorse items without his permission. I certainly would not want to be a public figure and find out my name or a take of my name is now being used to endorse porn without any recourse to prevent it. Get off it already and get a life.

Re: Re:

No, actually I go to the source, the trademark database at the Patent and Trademark Office, not news reporting by those who don't know what they're looking at. There are filed applications for a variety of goods, none of which are yet registered. More importantly, the applications are for WORDS, not for any physical movement. It's the right to use the words TEBOW and TEBOWING on goods as a brand, nothing more.

Re: Re: Re: Article Correction

as a Gator Fan, i have to take issue with this:
*someone* got a Heisman trophy as a quarterback, and i'm pretty sure the name on it was Tim Tebow...
*someone* won a national championship as a quarterback, and as i recall, his name was Tim Tebow...

*please* don't tell me your tribe is from the ACC, or i will laugh in your general direction...